The MoPeG is the largest legislative reform of partnership law since the BGB came into force and will have a direct impact on practice. Shareholders of partnerships and commercial partnerships are advised to inform themselves in good time before the turn of the year about the changes to the law that will soon come into force and to make any necessary amendments to their articles of association.
We summarize below the most important changes resulting from the MoPeG from a practical perspective.
Alignment of the wording of the law with the legal situation established by case law
The focus of the legislative changes is on civil law partnerships. Here, the wording of the law will be aligned with the legal situation that has been shaped by decades of case law and which is only imperfectly expressed in the wording of the law. In this respect, the MoPeG merely reproduces the existing legal situation in part. For example, the legal capacity of the external civil law partnership, i.e. the GbR, which has long been recognized in case law and participates in external legal transactions and thus does business with third parties as an external company, will also be expressly reflected in the law for the first time.
Numerous other innovations and changes
In some cases, however, the MoPeG also leads to genuine innovations and changes to the existing legal situation:
One of the key innovations is the introduction of a special register for civil law companies - the so-called company register. The structure of the company register is modeled on the commercial register. The company register will contain publicly accessible data on the company (such as name, registered office, address and representation relationships) and its shareholders. As with the commercial register, the trust of legal transactions in the accuracy of the data entered in the company register will be protected by the so-called register publicity, which will lead to an improvement in legal certainty in transactions with registered civil law partnerships ("eGbR"). Although registration in the company register will be voluntary, registration will be de facto mandatory and expressly recommended for civil law partnerships that own real estate assets or other rights entered in public registers (e.g. GmbH shares, shares, trademark rights).
The eGbR will also become a "convertible legal entity", meaning that mergers, demergers or changes of legal form involving an eGbR will be possible. This is not the case for the GbR under the current legal situation, which is why legal practice has so far been to register the GbR as an OHG in the commercial register prior to a conversion process. This cumbersome "workaround" will no longer be necessary in future - at least for the eGbR.
In future, participation in the profits and losses of the GbR, OHG and KG will no longer be based on heads, but on the agreed participation ratios or - in the event that no participation ratios have been agreed in the articles of association - on the value of the agreed contributions and deposits. Only if nothing has been contractually agreed with regard to the contributions and deposits will the distribution be made on a per capita basis, as is the case under current law. In existing companies, care should therefore be taken to expressly regulate the participation ratios or participation in profit and loss. In order to avoid an unwanted shift in profit shares in this respect, the articles of association of partnerships should be checked for corresponding provisions.
In addition, there will be numerous other changes to GbR law, for example
- the voting power of the partners,
- the registered office,
- the legal consequences in the event of the death of a partner and
- the external representation of the company.
The law governing commercial partnerships will be subject to changes in the law on defective resolutions, among other things. In addition, the GmbH & Co. KG will be opened up to freelancers.
Examination of articles of association for need for adjustment recommended
The numerous changes and adjustments to partnership law will affect the existing articles of association of many companies. In addition, companies under civil law that have real estate assets or shares in companies entered in the commercial register will regularly be recommended to be entered in the new company register.
We will be happy to assist you in reviewing your articles of association for any necessary amendments and advise you on the implementation of any necessary changes.
Certified lawyer for commercial and corporate law
Please note:
Dr. Bastian Koch and Dr. Sebastian Scholz will provide an overview of the changes that will come into force on 01.01.2024 as a result of the MoPeG and their effects on practice on 27.11.2023 at the IHK Flensburg(https://www.ihk-flensburg.de/services/veranstaltungskalender?enable-booking=1#/details/1847/1847) and on 13.12.2023 at the IHK Lübeck (link will be provided after publication).